Abstract (inglese)

The financing of terrorism has been a topic of great concern in the international community, especially following the terrorist attacks of the last decade in many nations around the world.
By studying the means through which terrorists gathered resources in order to plan the attacks, and by taking advantage of the globalization of the international financial markets, it is clear that the counteracting of the phenomenon does not depend solely on the domestic legal order of a State, but more importantly through international cooperation.
Our study began methologically, from the analysis of the sources of international public law, European Union Law and domestic law. Soft law acts, such as the recommendations of the Financial Action Task Force on Money Laundering, (an inter-governmental organization which combats money laundering and terrorist financing), were also extremely useful.
In the first part of our study, we begin by establishing the autonomy of part of the notion of financing of international terrorism. The collection of funds to benefit terrorists or terrorist organizations, even though these funds will not be used, in full or in part, in order to carry out a terrorist attack, is, according to the results of our research, an autonomous notion from that of international terrorism. Indeed, a person who finances is responsible, even though he/she does not prove that the funds are used for a terrorist act. It suffices to prove that these funds are contributed to the activity of an organization to be categorized as ‘terrorist’.
The second aspect on which the research focuses on, is the reconstruction of a customary international rule which provides for a duty of cooperation in the adoption of measures to counteract terrorist financing. The reconstruction began from the analysis of UN resolution n. 1373/2001, which requires States to adopt measures of domestic law in order to counteract the financing of terrorism. These measures are an essential requirement for an effective international cooperation.
Practice, especially inferred by the reports sent by States to the UN counter-terrorism committee, by the rules of domestic law and by the behavior of the representatives of States at international level, affirms that States must implement all available mechanisms at their disposal in order to execute UN resolution n. 1373/2001. As for opinio juris, a fundamental element to ensure the existence of a customary rule, it is useful to review declarations made by States in intergovernmental fora or during meetings of the Council of Europe, or, in the reports sent to the UN Committee, as established by resolution n. 1373.
Having established the existence of a customary rule providing for a duty to cooperate in the counteracting of the financing of terrorism, we focused on the effects inside the European Union legal order. The analysis began with the main measures for counteracting the financing of terrorism taken in the European Union. They have different nature and juridical basis, as they can be included in one of the three pillars of the Union. EU action has been particularly effective in the context of the counteracting of terrorist financing.
In one example, the EU has transformed into binding acts for Member States measures that were object of mere recommendations by some intergovernmental organisms (Financial Action Task Force).
Among the measures adopted in the context of the EU, we examined the freezing of assets to evaluate how States have executed foreign measures in order to implement the duty of international cooperation.
In an attempt to demonstrate this, we studied several hypothetical scenarios in which a judge of one of the Member States would have to make a decision. We determined that his judgment was contigent on the fact that the request of designation of a suspected terrorist comes from UN resolution n. 1267/99 or 1373/01.
Cooperation in the adoption of measures to counteract terrorist financing is stressed in the European Union legal order. EU has not only encouraged cooperation through the adoption of binding measures on Member States, but has also contributed to the establishment of the customary rule.
Even though the duty of cooperation can be said to be reinforced in a legal order like that of European Union, it has must coexist with other rules existing in the European legal order, such as the rules for the protection of human rights. In particular, measures which freeze assets can violate the right to a fair trial and to an effective remedy, the right to property, the right of reputation and the right to have access to public documents in the EU. How could these rights be coordinated with the customary rule which provides for a duty of cooperation in the counteracting of terrorist financing? Fundamental human rights can be limited, if they are not absolute, but only according a strict criterion of proportionality: thus, if a person suspected for terrorism has not the right to be previously informed, he has nevertheless the right to effective remedy before a national authority competent to the review of the lists.

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